Tagged: Paraguay

As part of my ambitious plan to provide you with information on online copyright enforcement procedures through all of the countries in the world, I come to you with part III of my ongoing posting series on national notice and takedown provisions—South America. Although few South American countries have adopted full-fledged notice and takedown provisions as provided in the U.S., Australia, and others, many South American countries have or an in the process of adopting national notice and takedown provisions, either through legislative reforms or judicial action, or have adopted other measures owners or rights holders of copyright protected works (collectively, “Rights Holders”) can use to protect their works online.

However, as I have mentioned in previous posts on this topic, determining whether a Rights Holder can enforce rights in their work online and abroad depends on: (1) whether a work qualifies for foreign protection (aka national treatment) under the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) or the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); (2) whether the Internet service provider (ISP) hosting the infringing use of the work is subject to jurisdiction in the country where online enforcement is sought; and (3) what online copyright enforcement procedures are available in the country of enforcement.

Each of these issues have been previously examined here and those with further questions should consult with a qualified attorney.

Below are the current online copyright enforcement procedures in each South American country. However, a couple of preliminary notes:

Classifications: A South American country that maintain legal protocols for a Rights Holder to directly petition an ISP to remove infringing content in order for the ISP to qualify for safe harbor protection from contributory liability for copyright infringement is identified below as a “Notice and Takedown System.” A country that does not provide legal provisions for a Rights Holder to directly enforce their copyright protections through an ISP notification system, and are instead forced to seek copyright enforcement through legal action are referred to as a “Judicial System.”

Notice Limitations: Unfortunately, even if a country maintains a Notice and Takedown System, an ISP may still refuse to disable access to a website or website content upon receipt of a Rights Holder’s infringement notice. In such instances, a Rights Holder may be forced to seek enforcement through that foreign country’s legal system in order to remove such online content.

Time Sensitivity: As several of the listed countries in this posting are evaluating or in the process of implementing copyright reforms, either through legislation or judicial action, there is the possibility that the following information may soon change.

Overview and Notes: Argentina does not currently provide statutory notice and takedown provisions. However, it was reported in June 2014 that the Argentine Supreme Court (Corte Suprema de Justicia de la Nación) heard oral arguments in Rodríguez v. Google Inc., where a lower appellate court had established a ISP safe harbor test where a Rights Holder could “notify [a] search engine, identifying the alleged infringing content” and the “search engine acts expeditiously to block the content via a quick and effective filtering method.” The Argentine Supreme Court has yet to publish a final opinion in Rodríguez, and Argentina’s civil law system makes it unclear whether any such judicial decision will require that all Argentine-based ISPs be subject to notice and takedown provisions upheld in such a decision.

Overview and Notes: Brazil has evaluated notice and takedown reforms, enacted ISP liability legislation, and has even ruled that ISPs are subject to a notice system. However, it is still unclear whether nationwide notice and takedown provisions have been fully established in Brazil. In 2012, the Brazilian government evaluated the Copyright Law Reform Bill (Bill nº 3133/2012), which commentators had reported was to include U.S.-style notice and takedown provisions. However, the Reform Bill has yet to be implemented. In August 2012, the Brazilian Superior Court of Justice held in a special judiciary opinion in Google Brazil (Special Appeal No. 1323754/RJ) that an ISP was required to temporarily remove infringing content 24 hours upon notice of infringement from a Rights Holder in order to retain immunity from from contributory liability for copyright infringement. However, commentators have questioned Google Brazil’s applicability to other Brazilian-based ISPs, requirements for Rights Holder infringement notices, and the duration of an ISP’s removal obligations, based on Brazil’s civil law system.

In May 2014, the Brazilian government enacted the Internet Bill of Rights (Law No. 12.965) that establishes liability for “Internet intermediaries” for failing to timely comply with a judicial takedown order. However, the Internet Bill of Rights provides no direct Rights Holder infringement notice provisions.

Overview and Notes: Chile does not currently possess notice and takedown provisions despite agreeing in the U.S.-Chile Free Trade Agreement (FTA) to provide “legal incentives for [ISPs] to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials.” Chile rejected adopting notice and takedown provisions in its ratification of the U.S.-Chile FTA, as well as in proposed copyright reform legislation in 2010. Instead, Chile implemented an expedited judicial enforcement process where a Rights Holder may submit a judicial petition against a Chilean-based ISP in a Chilean Civil Court to expeditiously evaluate the alleged infringement and obtain an injunctive takedown order.

-The allegedly infringed rights, with a specific indication of the rights and the infringement procedure;
-The infringing material; and
-The location of the infringing material in the ISP’s respective networks or systems.

Colombia

Enforcement System: Judicial System

Berne Convention Member: Yes

Notes and Overview: Despite multiple reform efforts, Colombia does not currently maintain any notice and takedown provisions. Colombia had agreed to adopt notice and takedown provisions in a side letter to the U.S.-Colombia FTA in 2006. However, Colombia has yet to implement such provisions. In 2011, Colombian legislators introduced copyright reforms in Bill No. 201 (aka Ley Lleras 1.0) that included notice and takedown provisions, but it was not enacted. The Colombian Congress subsequently passed similar reform legislation in 2012, Law No. 1520/2012 (aka Ley Lleras 2.0), but such legislation was largely invalidated by the Colombian Constitutional Court in January 2013 on the grounds that such legislation was not properly implemented. Additional proposed copyright reform legislation, Bill No. 306, was circulated for comments in March 2014, but does not include notice and takedown provisions and has yet to be implemented.

Overview and Notes: Ecuador does not currently maintain any notice and takedown provisions. Further, it was reported in December 2013 that the Ecuadorian National Assembly amended its Penal Code and the Intellectual Property Law to decriminalize all IP rights violations, thereby only allowing administrative actions and fines to enforce copyright in works in Ecuador, online or otherwise.

Enforcement System: Notice and Takedown System (*Restricted and Undetermined)

Berne Convention Member: Yes

Overview and Notes: French Guiana is an overseas department of France and is thereby governed by French copyright law. As a European Union (EU) member state, France was required to adopt notice and takedown provisions as provided under Article 14 of the EU Electronic Commerce Directive (Directive 2000/31/EC). However, the EU Directive provides only general recommendations, thereby giving EU member states such as France substantial flexibility to implement their own notice and takedown provisions.

France adopted notice and takedown provisions in its Creation and Internet Law where Rights Holder organizations could submit complaints to France’s online copyright authority, The High Authority for the Dissemination of Works and the Protection of Rights on the Internet (HADOPI), who would then provide notices to online infringers and remove allegedly infringing content under a graduated three-stikes approach. However, it was reported that individual Rights Holders were not allowed submit complaints to HADOPI, as such complaints must be submitted by agents of industry organizations, rights collection agencies, and the French Center of Cinematography.

Further, the French Ministry of Culture revoked the three-strikes approach on July 9, 2013 (Decree No. 2013-596) due to a perceived lack of effectiveness and public concerns that its enforcement measures were overly punitive. However, the Decree did not expressly remove the Creation and Internet Law’s ISP penalties or its notice system. However, as mentioned, the HADOPI notice system, if still in effect, can only be utilized by industry organizations, rights collection agencies, and the French Center of Cinematography on behalf of individual Rights Holders.

-Sworn declaration that the authorized agent of the referral has standing to act in the name of the Rights Holder over the protected work or materials in question;
-Information on the website address(es) and other details of the alleged infringer; and
-Information on the infringing acts including date and time of the acts.

Guyana

Enforcement System: Judicial System

Berne Convention Member: Yes

Overview and Notes: According to the World Intellectual Property Organization, copyright law in Guyana is governed by its former colonizer, the United Kingdom. However, it does not appear that Guyana has adopted notice and take provisions as required by EU member states such as the United Kingdom under Article 14 of the EU Electronic Commerce Directive (Directive 2000/31/EC).

Overview and Notes: Despite multiple reform efforts, Peru does not currently maintain any notice and takedown provisions. Peru had agreed to adopt notice and takedown provisions in a side letter to the U.S.-Peru FTA in 2006, and it did adopt several copyright reforms in 2009 in order to implement its U.S.-Peru FTA obligations. However, such reforms do not appear to include notice and takedown provisions as promised in the U.S.-Peru FTA side letter.

However, Peru may soon be required to implement notice and takedown provisions if the TTP is finalized and the U.S. draft chapter is adopted in a final TPP agreement.

Overview and Notes: Uruguay does not currently maintain any notice and takedown provisions. It is reported that Uruguay is currently considering a number of copyright reforms, yet it does not appear that notice and takedown provisions are included in such reform proposals.

The Office of the U.S. Trade Representative (USTR) released an Out-of-Cycle Review of Notorious Markets on Thursday, December 13, 2012, which identified physical and online markets reported by U.S. businesses and industry organizations as being engaged in substantial intellectual property piracy and counterfeiting. The Review included particular social media, multi-platform, deeplinking, cyberlocker, business-to-business, business-to-consumer, bit torrent indexing, bit torrent tracking, and pay-per-download websites. Specific physical markets in Argentina, China, Colombia, Ecuador, India, Indonesia, Mexico, Pakistan, Paraguay, Thailand, and Ukraine were also deemed notorious.

Other notable changes in the Review included the removal of Chinese websites Taobao and Sogou as notorious markets, for their efforts to work with rights-holders to identify infringing content on their websites.